What is ‘general consent’ for CBI, now withdrawn by Meghalaya?

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What is ‘general consent’ for CBI, now withdrawn by Meghalaya?

  • Nine states have withdrawn general consent to the CBI, which means agency must seek permission of state govt before it can open a fresh case in the state.

What is general consent?

  • The CBI is governed by DSPE Act, 1946, and it must mandatorily obtain consent of state government concerned before beginning to investigate a crime in a state.
  • Section 6 of The DSPE Act says:
  • “Nothing contained in section 5 (titled “Extension of powers and jurisdiction of special police establishment to other areas”) shall be deemed to enable any member of the Delhi Special Police
  • Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area, without the consent of the Government of that State.”
  • CBI’s position is in this respect different from that of NIA, which is governed by NIA Act, 2008, and has jurisdiction across the country.
  • Consent of state government to CBI can be either case-specific or general.
  • General consent is normally given by states to help CBI in seamless investigation of cases of corruption against central government employees in their states.
  • In the absence of which the CBI would have to apply to the state government in every case, and before taking even small actions.

The 9 states

  • Traditionally, almost all states have given CBI general consent.
  • However, since 2015 onward, several states have begun to act differently.
  • Before Meghalaya’s action , eight other states had withdrawn consent to CBI: Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram.

What does the withdrawal of general consent mean?

  • It means CBI will not be able to register any fresh case involving officials of central government or a private person in state without consent of the state government.
  • CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them
  • Calcutta HC recently ruled in a case of illegal coal mining and cattle smuggling being investigated by the CBI, that central agency cannot be stopped from probing an employee of central government in another state.
  • The order has been challenged in the Supreme Court.
  • Calcutta HC ruled said corruption cases must be treated equally across the country, and a central government employee could not be distinguished just because his office was located in a state that had withdrawn general consent.
  • It also said that withdrawal of consent would apply in cases where exclusively employees of state government were involved.

What it doesn’t mean

  • Withdrawal of consent did not make CBI defunct in a state
  • It retained power to investigate cases that had been registered before consent was withdrawn.
  • Also, a case registered anywhere else in country, which involved individuals stationed in these states, allowed CBI’s jurisdiction to extend to these states.
  • There is ambiguity on whether CBI can carry out a search in connection with an old case without the consent of the state government.
  • But the agency has the option to get a warrant from a local court in the state and conduct the search.
  • In case the search requires an element of surprise, Section 166 of the CrPC can be used, which allows a police officer of one jurisdiction to ask an officer of another to carry out a search on their behalf.
  • And should the first officer feel that a search carried out by latter may lead to loss of evidence, section allows the first officer to conduct the search himself after giving notice to the latter.

What about fresh cases?

  • In an order passed in 2018, Delhi HC ruled that the agency could probe anyone in a state that has withdrawn general consent, if the case was not registered in that state.